Hastings v. Shelby County Government

NEDRA HASTINGS, on her own behalf and on behalf of her minor child, N.H., Plaintiffs,v.SHELBY COUNTY GOVERNMENT et al., Defendants.

ORDER ADOPTING REPORT AND RECOMMENDATIONS AND
DISMISSING COMPLAINT

Sheryl
H. Lipman United States District Judge

Before
the Court is Magistrate Judge Charmiane G. Claxton's
(“Magistrate Judge”) Report and Recommendations
(“R&R”), filed April 22, 2019, (ECF No. 18),
and Ms. Hastings's Objections thereto, filed May 6, 2019,
which the Court also construes as, at least in part, a motion
for leave to amend, (ECF No. 19). For the following reasons,
the Court DENIES the objections and leave to
amend and ADOPTS the R&R. Accordingly,
Ms. Hastings's Complaint is DISMISSED WITH
PREJUDICE for failure to state a claim upon which
relief may be granted. In addition, the Court
CERTIFIES that an appeal would not be taken
in good faith and DENIES leave to appeal
in forma pauperis.

A
magistrate judge may submit to a judge of the court
recommendations for the determination of certain pretrial
matters. 28 U.S.C. §§ 636(b)(1)(A)-(B).
“Within 14 days after being served with a copy of the
recommended disposition, a party may serve and file specific
written objections to the proposed findings and
recommendations.” Fed.R.Civ.P. 72(b)(2); see
also 28 U.S.C. § 636(b)(1). A district court
reviews de novo only those proposed findings of fact
or conclusions of law to which a party specifically objects.
Fed.R.Civ.P. 72(b)(2); see also Fed. R. Civ. P.
72(b)(3). After reviewing objections, a district court
“may accept, reject, or modify, in whole or in part,
the findings or recommendations” of the magistrate
judge. 28 U.S.C. § 636(b)(1)(C). “A general
objection that does not identify specific issues from the
magistrate's report, ” on the other hand, “is
not permitted because it renders the recommendations of the
magistrate useless, duplicates the efforts of the magistrate,
and wastes judicial economy.” Johnson v.
Brown, No. 13-242-GFVT, 2016 WL 4261761, at *1 (E.D. Ky.
Aug. 12, 2016) (citing Howard v. Sec'y of Health and
Human Servs., 932 F.2d 505, 509 (6th Cir. 1991).

Ms.
Hastings filed her Complaint and First Amended Complaint,
respectively on September 15, and October 16, 2017. (ECF Nos.
1, 6.) In an R&R dated October 23, 2018, the Magistrate
Judge recommended dismissal of the First Amended Complaint.
(ECF No. 9.) On January 24, 2019, the Court adopted in part
and modified in part that R&R, agreeing with the
Magistrate Judge that Ms. Hastings's 125-page, 800-plus
paragraph First Amended Complaint, purporting to sue 48
discrete Defendants, failed to state a claim upon which
relief may be granted, but allowing Ms. Hastings to amend her
pleading. (ECF No. 11.) On March 14, 2019, Ms. Hastings filed
a 47-page, 133-paragraph Second Amended Complaint, purporting
to sue 16 discrete Defendants, and a two-page Appendix
organizing her claims by party. (ECF Nos. 14, 16.)

The
R&R presently before the Court recommends dismissal of
all claims in the Second Amended Complaint, with prejudice,
for several reasons. As an initial matter, the Magistrate
Judge found that, despite Ms. Hastings's attempt to
organize her claims in an Appendix, “[i]t is unclear
from the Second Amended Complaint specifically what law or
laws each defendant is alleged to have violated and what
factual allegations support those claims. . . . There is no
simple way to properly ascertain the factual basis for each
as to each defendant.” (ECF No. 18 at PageID 282-83.)
The Magistrate Judge concluded that the Second Amended
Complaint amounts to “a no less rambling document than
the Amended Complaint” with a “largely
conclusory” narrative. (Id. at PageID 280,
283.)

Alternatively,
the Magistrate Judge found that Ms. Hastings's state-law
tort claims and federal civil-rights claims are time-barred
by a one-year statute of limitations because “the acts
complained of generally occurred between June 2014 and
September 2016, ” “[i]n none of the referenced
[state tort counts] does Plaintiff allege acts that occurred
on or after September 15, 2016, ” and “[i]n none
of the [federal civil rights counts] does Plaintiff allege
acts . . . that occurred on or after September 15,
2016.” (Id. at PageID 233-85.) Because Ms.
Hastings filed the original Complaint on September 15, 2017,
the acts at issue must have occurred after September 15,
2016, to be within the limitations period. (See id.
at PageID 284.)

Finally,
the Magistrate Judge found that Ms. Hastings's claims for
“fraudulent investigation, ” “abuse of
process, ” “interference with attorney-client
contract, ” “deficient representation” and
“failure to exercise discretionary function” are
not “grounded in any statutory or common law cause of
action.” (Id. at PageID 286.)

Having
found several bases for dismissal of Ms. Hastings's
claims, the R&R also recommends certification that an
appeal would not be taken in good faith and denial of leave
to appeal in forma pauperis. (Id.)

Ms.
Hastings disagrees, and filed objections expressing so.
First, in her objections, she argues, for the first time in
the nearly two years that this action has been pending, that
“wrongful acts continued as late as February
2018.” (ECF No. 19 at PageID 288.) Otherwise, at most,
she gainsays the R&R, contending that the allegations in
the Second Amended Complaint plausibly establish her legal
claims. (Id. at PageID 288-89.) She also again seeks
leave to amend to “correct deficiencies by simplifying
the organization of claims with separate counts as to each
defendant . . . [and] specifically listing dates of acts or
discovery of such acts for each defendant.” (ECF No. 19
at PageID 288.) She also argues that she is attempting to
allege a legal malpractice claim pursuant to “T.C.A.
§ 28-304, ” which the Court construes as a claim
pursuant to Tenn. Code Ann. § 28-3-104. (Id. at
PageID 289.)

The
Court reviews de novo the R&R's findings of
fact and conclusions of law to which Ms. Hastings objects.
See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P.
72(b)(2)-(3). Ms. Hastings's objections as to the statute
of limitations are specific, and therefore warrant de
novo review of the R&R. See Fed.R.Civ.P.
72(b)(3). However, she also includes general objections as to
other aspects of the R&R, warranting clear error review
as to those sections. 28 U.S.C. § 636(b)(1)(A)-(B).

As for
the statute of limitations, the Second Amended Complaint does
fail to state a claim because, even to the extent it
plausibly alleges a state or federal cause of action, it is
time-barred. Specifically, Ms. Hastings has not alleged any
acts that occurred after September 15, 2016, although she now
contends that the harms have continued. The limitations
period for negligence, malicious prosecution, intentional
infliction of emotional distress and invasion of privacy in
Tennessee is one year, but Ms. Hastings did not file her
Complaint until September 15, 2017. (See ECF No. 1.)
See Tenn. Code Ann. § 28-3-104; Evans v.
Walgreen Co., 813 F.Supp. 897, 939 (W.D. Tenn. 2011);
Rutherford v. First Tenn. Bank N.A., 2008 WL
3307203, at *6 (E.D. Tenn. Aug. 7, 2008). Similarly, the
limitations period for actions under 42 U.S.C. §§
1983, 1985 and 1986 is one year. Tenn. Code Ann. §
28-3-104(a)(1)(B).

As for
her general objections related to her claims for
“fraudulent investigation, ” “abuse of
process, ” “interference with attorney-client
contract, ” “deficient representation” and
“failure to exercise discretionary function, ”
Tennessee law does not appear to provide causes of action for
these claims, and Ms. Hastings's Objections to the
R&R provide no law to support a different result.
(See generally ECF No. 19.) Thus, her objections are
insufficient to satisfy her burden in opposing the
R&R's conclusion that the Second Amended Complaint
fails to state cognizable claims. See Johnson, 2016
WL 4261761, at *1. Therefore, the Court
ADOPTS the R&R, and Ms. Hastings's
claims are DISMISSED WITH PREJUDICE.
Furthermore, the Court CERTIFIES that an
appeal would not be taken in good faith, and thus leave to
appeal in forma pauperis is DENIED.

In her
Objections, Ms. Hastings does seek, in the alternative, leave
to amend to allege harms that continued to February 2018. The
Court finds, however, that leave to amend should not be
granted here. Federal Rule of Civil Procedure 15 provides
that, where a plaintiff has already amended once as a matter
of course, the plaintiff must obtain either written consent
of opposing parties or leave of the Court before amending,
and that the Court “should freely give leave when
justice so requires.” Fed.R.Civ.P. 15(a)(2). However,
the Court need not grant leave to amend in cases involving
“undue delay . . . [or] repeated failure to cure
deficiencies by amendments previously allowed, ” or
where amendment would be futile. Foman v. Davis, 371
U.S. 178, 182 (1962).

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;The
Court has given Ms. Hastings every possible opportunity to
present a cognizable claim, having granted leave to amend in
modifying in part the Magistrate Judge&#39;s last R&R.
(ECF No. 11.) The Court even granted an extension of time
within which to file the Second Amended Complaint. (ECF No.
13.) Ms. Hastings was no doubt aware of alleged harms
continuing into February 2018 when she filed the Second
Amended Complaint on March 11, 2019, but, for whatever
reason, she did not include those allegations in the Second
Amended Complaint. (See generally ECF No. 14.)
Moreover, Ms. Hastings has not provided any basis for the
application of the discovery rule or the continuing violation
doctrine. The Court thus finds that the purported need for
amendment now is the result of “undue delay . . . [or]
repeated failure to cure ...

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